RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 February 2005
      DOCKET NUMBER:  AR20040000859


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that clemency in the form of a
general (under honorable conditions) discharge be granted.

2.  The applicant states, in effect, that he made a mistake in judgment
while he was in the service and that he is now a law-abiding citizen.  He
further states that he serves in the community and has had no more legal
problems.

3.  The applicant provides a four-page City of Atlanta Police Department,
State of Georgia Criminal History/Arrest Record, dated 2 March 2004; a
personal resume; and eleven character letters of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 August 1980 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 45B (Small Arms Repairman).

2.  On 10 February 1981, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being
asleep on guard duty.

3.  On 13 July 1981, the applicant accepted NJP under Article 15, UCMJ for
using disrespectful language towards a senior Non-Commissioned Officer.

4.  On 22 September 1981, the applicant accepted NJP under Article 15, UCMJ
for wrongfully engaging in a fistfight and lending money to Soldiers
illegally.

5.  On 27 January 1984, the applicant was convicted by a special court-
martial of wrongfully distributing marijuana in the form of hashish and
unlawfully striking a fellow Soldier.  His sentence consisted of a
reduction to the grade of private/pay grade E-1, a forfeiture of $397.00
for three months, confinement at hard labor for three months, and a bad
conduct discharge.

6.  On 23 March 1984, the applicant underwent a mental evaluation by a
medical physician that determined that he could distinguish right from
wrong and that he possessed sufficient mental capacity to understand and
participate in administrative or judicial proceedings.



7.  On 5 April 1984, the U.S. Army Court of Military Review (USACMR)
considered the applicant's appeal and determined that there was no merit or
basis to set aside the sentence and that the applicant suffered no
prejudice from the sentence.  The USACMR affirmed the finding of guilty and
the sentence.

8.  Headquarters, U.S. Army Correctional Activity, General Court-Martial
Order Number 344, dated 8 August 1984 directed that the Bad Conduct
Discharge be executed.

9.  On 23 August 1984, the applicant received a bad conduct discharge under
the provisions of chapter 3 of Army Regulation 635-200 (Personnel
Separations), by reason of court-martial.  He had completed 3 years, 9
months, and 15 days of creditable active military service with 70 days of
lost time due to confinement.

10.  The applicant submitted a Criminal History/Arrest Record from the City
of Atlanta Police Department, dated 2 March 2004, which shows on 20 April
1995 a charge against him of criminal trespassing was placed on the dead
docket.  Documents for the court proceeding in the case are not available.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3 provides policy for the
separation of members with a dishonorable or bad conduct discharge pursuant
to an approved sentence of a general or special court-martial.  It states
that discharge would be accomplished only after the completion of the
appellate process and affirmation of the court-martial findings and
sentence.

12.  In accordance with Title 10 of the United States Code, section 1552,
the authority under which this Board acts, the Army Board for Correction of
Military Records is not empowered to set aside a conviction.  Rather it is
only empowered to change the severity of the sentence imposed in the court-
martial process and then only if clemency is determined to be appropriate.
Clemency is an act of mercy, or instance of leniency, to moderate the
severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by court-martial was warranted by the gravity of
the offenses for which he was charged and convicted.  Conviction and
discharge were effected in accordance with applicable law and regulations,
and the discharge appropriately characterizes the misconduct for which he
was convicted.


2.  By law, the Army Board of Correction for Military Records may not
disturb the finality of a court-martial.  The Board is only empowered to
change a discharge if clemency is determined to be appropriate to moderate
the severity of the punishment imposed.

3.  The applicant's entire record of service and his post service conduct,
as attested to in the supporting character statements, were considered in
this case.  However, given the seriousness of the offenses for which he was
convicted, it is determined that these factors are not sufficiently
meritorious or mitigating to warrant clemency in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JLP___  __TAP___  __KWL__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.




                                  ____ Ms. Jennifer L. Prater_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040001357                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |15 February 2005                        |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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